Jishan Lal Raitka vs Roshan Lal And Anr

Bipin Chander Negi, J

The instant petition has been filed by the petitioner/accused against the judgment dated 19.05.2022 passed by the Court of learned Sessions Judge (Forest), Shimla, HP Camp at Rohru,, HP in Criminal Appeal No.2 -R/10 of 2022, whereby the appeal filed by the petitioner/accused against the judgment and sentence dated 26.10.2021/27.10.2021 passed by the Court of learned Additional Chief Judicial Magistrate, Court No.1, Rohru, District Shimla, HP, has been dismissed and the impugned judgment of conviction and sentence passed by the learned trial Court are upheld.

Heard counsel for the parties. Record perused.

The cheque in the case at hand is dated 30.04.2019. Admittedly during its validity, it was presented before the concerned Bank. The same was returned vide Bank Memo dated 27.06.2019. The reason stated in the returned memo is ‘account closed.’

In pursuance to the aforesaid return, legal notice dated 8. 07.2019 was sent to the complainant/present petitioner at his correct address. The same was posted on 09.07.2019. The same was received on 11.07.2019. Since no payment was made within 15 days of the receipt of the same i.e. on or before 26.07.2019, therefore, the present respondent was constrained to file a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act on 21.08.2019.

From the aforesaid facts and attending circumstances, it is clearly evident that the provisions of Section 138 read with Section 142 of the Negotiable Instruments Act stands complied, in the case at hand. Since there is no infraction of law in this regard, therefore, there arises no occasion to interfere in a revisional jurisdiction on account of non-compliance of the provisions of law i.e. Section 138 read with Section 142 of the Negotiable Instruments Act.

From a perusal of record, it is evident that the present petitioner/complainant has raised the defence of non-existence of any legally enforceable liability, in the case at hand. The accused/petitioner has not denied his signatures on the cheque, in the case at hand. Neither the petitioner/accused denied mention of Rs.3 lacs in the cheque in question. The accused/petitioner had appeared as DW1 before the trial Court. In his cross-examination he had stated that he had made a payment of Rs.3 lacs for purchase of apples to the complainant/respondent. In his cross-examination he could not state the month and date on which the payment was made. Besides the aforesaid, he could not state anything qua the source from where he had procured Rs.3 lacs.

No evidence qua the alleged payment of Rs.3 lacs could be produced by the petitioner/accused. Neither was any receipt or acknowledgement placed on record qua the alleged payment of Rs.3 lacs. In order to further support his contention qua making a payment of Rs.3 lacs to the respondent/complainant the petitioner/accused had produced DW2 one Sh. Piyare Ram, who is not related by blood to the petitioner/accused. The said witness could not state the date and month on which a payment of Rs.3 lacs had been made by the petitioner/accused to the respondent/complainant in the year 2019.

The defence raised by the petitioner/accused has to meet the test of preponderance of probability. Both the Courts have rejected the defence, so raised by the petitioner/accused.

Normally a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding [(2012) 9 SCC 460 case titled as Amit Kappor Vs. Ramesh Chander]. Learned counsel for the petitioner/accused has failed to point out any perversity in the findings recorded by both the Courts below qua rejection of defence raised by the petitioner/accused.

Both the learned Courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well-reasoned judgments passed by both the learned Courts below.

In view of the aforesaid, the instant petition is dismissed, so also the pending application(s), if any.